HSB 661 (LSB 5824YC (2) 89)

HOUSE FILE _____ 

BY  (PROPOSED COMMITTEE ON VETERANS AFFAIRS BILL BY CHAIRPERSON SALMON)

A BILL FOR

An Act relating to employment protections for state employees who are veterans.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:

    Section 1.  Section 35C.6, Code 2022, is amended by striking the section and inserting in lieu thereof the following:
   35C.6  Removal —— certiorari —— judicial review.
   1.  For the purposes of this section:
   a.  “Aggravated misconduct” means repeated misconduct a person knows will likely cause harm but the person, after being given a warning and reasonable opportunity to correct the person’s actions, willfully continues the conduct, or an act with readily apparent, serious, and harmful consequences that would deter a reasonable person in similar circumstances from committing that act.
   b.  “Removal authority” means an official of an entity that determines whether or not to remove a veteran at a pre-removal hearing.
   2.  A veteran holding a public position by appointment or employment shall not be removed from the position except upon a finding of incompetency or aggravated misconduct.
   3.  a.  A removal of a veteran is not valid unless, prior to the removal, the veteran’s employer completes an investigation into the alleged incompetency or aggravated misconduct, gives written notice to the veteran of each charge of incompetency or aggravated misconduct and, at a pre-removal hearing held within a reasonable amount of time, a removal authority finds the veteran is incompetent or has committed aggravated misconduct and should be removed.
   b.  A notice given to a veteran pursuant to paragraph “a” shall include the specific facts alleged to support each count of incompetence or aggravated misconduct, the date, time, and location of the veteran’s pre-removal hearing, the name and contact information for the removal authority, and a statement that the veteran has the right to a review of a removal authority’s decision by a writ of certiorari or judicial review in accordance with chapter 17A.
   c.  If a removal authority has determined a veteran should be removed due to incompetence or aggravated misconduct, the removal authority shall provide the veteran written notification of the decision, the findings and rationale in support of the decision, and the veteran’s right to a review of the decision by a writ of certiorari or judicial review in accordance with chapter 17A, as applicable.
   d.  A writ of certiorari or petition filed pursuant to this subsection shall be filed within three hundred days of the veteran’s receipt of notice of the veteran’s removal from the removal authority. 
   4.  a.  Unless extended by consent of the parties to a pre-removal hearing or for good cause, within thirty days of receiving notice of a removed veteran’s writ of certiorari or petition for judicial review, a removal authority shall file all of the following materials with the clerk of court:
   (1)  A certified transcript of the pre-removal hearing and recorded investigatory interviews.
   (2)  Any transcripts, reports, and other materials created as part of an investigation into alleged incompetency or aggravated misconduct.
   (3)  Any audio or video recordings created in relation to the veteran’s removal.
   (4)  The administrative record or return to the writ related to the removal.
   b.  Upon a showing of good cause, a court shall seal materials submitted pursuant to paragraph “a” that the court determines to be confidential in nature, including but not limited to documents relating to a person’s medical history or health, financial information, and personal identifying information.
   5.  Upon a court or administrative law judge finding that a veteran has been removed in violation of this section, the court or administrative law judge shall award the removed veteran reimbursement for lost wages and benefits and order the reinstatement of the veteran, if requested, and may award equitable relief, injunctive relief, and reasonable attorney fees.
    Sec. 2.  Section 35C.7, Code 2022, is amended to read as follows:
   35C.7  Burden of proof.
   The burden of proving incompetency or aggravated misconduct as defined in section 35C.6 shall rest upon the party alleging the same.
EXPLANATION
The inclusion of this explanation does not constitute agreement with
the explanation’s substance by the members of the general assembly.
   This bill relates to employment protections for state employees who are veterans.
   The bill defines “aggravated misconduct” as repeated misconduct a person knows will likely cause harm but the person, after being given a warning and reasonable opportunity to correct the person’s actions, willfully continues the conduct, or an act with readily apparent, serious, and harmful consequences that would deter a reasonable person in similar circumstances from committing that act.
   The bill defines “removal authority” as an official of an entity that determines whether or not to remove a veteran at a pre-removal hearing. The bill prohibits a veteran from being removed from a public position to which the veteran was appointed or employed except upon a finding of incompetency or aggravated misconduct.
   The bill provides that a removal of a veteran is not valid unless, prior to the removal, the veteran’s employer completes an investigation into the alleged incompetency or aggravated misconduct, gives written notice to the veteran of each charge of incompetency or aggravated misconduct and, at a pre-removal hearing held within a reasonable amount of time, a removal authority finds the veteran is incompetent or has committed aggravated misconduct and should be removed.
   The bill requires employer notice to a veteran to include the specific facts alleged to support each count of incompetence or aggravated misconduct, the date, time, and location of the veteran’s pre-removal hearing, the name and contact information for the removal authority, and a statement that the veteran has the right to a review of a removal authority’s decision by a writ of certiorari or judicial review. A writ of certiorari or petition shall be filed within 300 days of the veteran’s receipt of notice of the veteran’s removal from the removal authority.
   The bill requires a removal authority that determines a veteran should be removed due to incompetence or having committed aggravated misconduct, to provide the veteran written notification of the decision, the findings in support of the decision, and the veteran’s right to a review of the decision by a writ of certiorari or judicial review. 
   The bill provides that, unless extended by consent of parties to a pre-removal hearing or for good cause, within 30 days of receiving notice of a removed veteran’s writ of certiorari or petition for judicial review, a removal authority shall file a certified transcript of the pre-removal hearing and recorded investigatory interviews; any transcripts, reports, and other materials created as part of an investigation into alleged incompetency or aggravated misconduct; any audio or video recordings created in relation to the veteran’s removal; and the administrative record or return to the writ related to the removal with the clerk of court. The bill also requires that, upon a showing of good cause, a court shall seal submitted materials that the court determines to be confidential in nature, including but not limited to documents relating to a person’s medical history or health, financial information, and personal identifying information.
   The bill requires a court or administrative law judge that finds a veteran has been improperly removed to award the removed veteran reimbursement for lost wages and benefits and order the reinstatement of the veteran, if requested, and may award equitable relief, injunctive relief, and reasonable attorney fees.
   The bill makes a conforming change to Code section 35C.7 (burden of proof).